Both federal law and the Kentucky Civil Rights Act (KCRA it will be referred to from here on out) prohibit retaliation against an employee who has reported or opposed a discriminatory employment practice. But does this protection apply if the discriminatory employment practice is proved or determined not to be unlawful? The protection does apply the Kentucky Supreme Court ruled recently in Asbury University v. Deborah Powell.

Powell was formerly the women's basketball coach at Asbury. She made a number of reports and complaints through channels at Asbury regarding gender discrimination aimed both at her own treatment and at the treatment and attention Asbury allowed to women's sports programs in general. Eventually, Powell was fired for what a jury found to be a made-up or pretextual reason. After she was fired, Powell sued the university and advanced claims both that she had been discriminated against based on her sex while employed and that her firing was in retaliation for her complaints and reports about gender discrimination. The jury found against Powell on her sex discrimination claim but found for her on the retaliation claim. The jury awarded Powell $88,325.97 for lost wages and $300,000 for humiliation, embarassment and emotional distress.

On appeal to the Kentucky Supreme Court, the university argued that Powell could not win on her retaliation claim since she had lost on her related and underlying sex discrimination claim.

... all that is required to obtain retaliation protection under [the KCRA] is that the employee have "a reasonable and good faith belief" that the adverse employment practices she opposed were KCRA violations.

And whether that belief is reasonable or in good faith is a question for the jury. Consequently, a jury could believe that the alleged discriminatory conduct of the employer was not in fact discriminatory, but that it could have reasonably appeared so to the employee. That is the upshot of the jury's finding here. A retaliation claim is premised on the notion that the employer takes adverse action against an employee because the employee exercised the right to speak out against discrmination.

The same rule applies under federal law: an employee is protected from retaliation if he or she speaks out against what they can reasonably conclude in good faith is some form of unlawful discrimination.

There are a couple other important points. First, if an employee speaks out against what he or she perceives is discrimination, it must be what reasonably appears to be some form of unlawful discrimination. A general complaint of discrimination that is not tethered to some form of unlawful discrimination may not be entitled to any legal protection against retaliation. Second, while the discrimination that an employee speaks out against may not need itself to rise to the level of unlawful discrimination, there still has to be some reasonable basis for the employee to conclude in good faith that he or she is speaking out against unlawful discrimination.